The Price of Our Good Name
Americans have watched in horror as President Bush has trampled on the Bill of Rights and the balance of power. The list of abuses that President-elect Barack Obama must address is long: once again require the government to get warrants to eavesdrop on Americans; undo scores of executive orders and bill-signing statements that have undermined the powers of Congress; strip out the unnecessary invasions of privacy embedded in the Patriot Act; block new F.B.I. investigative guidelines straight out of J. Edgar Hoover's playbook.
Those are not the only disasters Mr. Obama will inherit. He will have to rescue a drowning economy, restore regulatory sanity to the financial markets and extricate the country from an unnecessary war in Iraq so it can focus on a necessary war in Afghanistan.
Even with all those demands, there is one thing Mr. Obama must do quickly to begin to repair this nation's image and restore its self-respect: announce a plan for closing Mr. Bush's outlaw prison at Guantánamo Bay.
The prison is the premier example of the disdain shown by Mr. Bush and Vice President Dick Cheney for the Constitution, federal law and international treaties. Most sensible governments cannot see past Guantánamo to even recall America's long history as a defender of human rights and democratic values.
We are under no illusions. Closing the prison will not be easy, or quick, but it can be done. It does not mean that the United States will set free heinous terrorists. But it may mean that these prisoners will have to be tried on other very serious charges than the ones supposedly for which they were sent to Guantánamo.
That is Mr. Bush's fault. His decision to authorize the torture of detainees has made it highly unlikely that the evidence collected at Gitmo and the C.I.A.'s illegal prisons around the world would stand up in a real court.
In closing down Guantánamo, there are some basic requirements: The prisoners must be dealt with as openly as possible. Those who are charged here must stand trial in federal courts, not the tribunals created by the disastrous Military Commissions Act of 2006.
It would compound the disaster if, as some suggest, Congress tried to create a new system combining military and civilian justice. We have seen what happens when the government creates special systems to deal with special classes of prisoners.
Human Rights Watch has offered a good template for closing Guantánamo. It includes:
SET A DATE TO CLOSE THE PRISON That announcement would send a powerful signal that the new administration has rejected Mr. Bush's abusive and unlawful policies. It would make other countries more likely to cooperate. The taint of Guantánamo is so great that right now even close allies will not consider resettling prisoners who should be set free because they committed no crimes of any kind. There may be at least 60 of these detainees at Gitmo. Selected countries might also be willing to take back their own nationals to stand trial.
BEGIN A TRANSPARENT REVIEW OF DETAINEES There are about 250 detainees at Guantánamo Bay. Human Rights Watch sensibly proposes creating a task force run by the Justice Department with input from the Departments of State and Defense and the director of national intelligence to separate out those who may be truly guilty of terrorist acts - a minority - from the larger population who either committed much more minor crimes or no crimes at all.
REPATRIATE DETAINEES WHO ARE NOT TO BE TRIED This must be done carefully. There are believed to be 30 to 50 detainees from places like Algeria and Libya who have justified fears of being abused or tortured if they are sent home. The Obama administration should provide these prisoners with advance notice of plans to repatriate them and give them a chance to contest those plans.
Prisoners with a credible fear of abuse cannot be sent to that fate. They will have to be sent to other countries to live. The best way for the United States to get other governments to cooperate is to accept some detainees for settlement in this country.
TRY THE REST IN FEDERAL COURTS Americans will hear from former members of the Bush administration and supporters of its system of injustice that the federal courts cannot handle these cases because they involve sensitive secrets, or that terrorism is not appropriately handled as a law-enforcement issue.
Since Sept. 11, 2001, the federal courts have successfully prosecuted about 100 terrorism cases, and the courts deal routinely with national secrets. The real reason Mr. Bush and his team avoided the federal courts for the Gitmo detainees was that the evidence in so many of these cases is wafer-thin or unusable because it was obtained through coercion and torture.
The world saw more proof of that last week, when Col. Stephen Henley, a military judge at Guantánamo, refused to admit evidence obtained through torture or coercion at the trial of Mohammed Jawad, an Afghan national who is one of the few prisoners at Guantánamo who has been charged and put on trial. Evidence that cannot pass muster in Guantánamo's kangaroo courts is certainly not going to be admitted by a civilian judge in a duly constituted court of law.
The Jawad case has become emblematic of everything that is wrong with Guantánamo Bay: he was captured in Afghanistan at the age of 16 or 17 and thrown into indefinite detention without hope of eventual release because he allegedly threw a grenade at two American servicemen and an Afghan interpreter. The prosecutor resigned in September, saying he could not ethically proceed, and the judge threw out Mr. Jawad's confession because it had been tortured out of him by Afghan interrogators.
Does this mean that truly dangerous men will be set free, to go back to plotting more attacks against America? No. But it will require smart legal thinking by the new administration.
Take the case of Khalid Sheikh Mohammed. It is obvious that the confession he made to plotting the 9/11 bombings will not hold up in court. It was obtained through torture. But this prisoner is a suspect in numerous other terrorist attacks, including the murder of the journalist Daniel Pearl and the attack on the U.S.S. Cole. There is an existing 1996 indictment against him for a plot to blow up 12 United States-bound commercial airliners. The evidence in that case was obtained, we presume, legally.
It may be that compromises of this kind will have to be made in other cases as well. It is understandable that some Americans will find that less than satisfying. But it is important to remember that this is the price of Mr. Bush's incompetent and lawless conduct of the war against terrorism. It is a price worth paying to restore the rule of law and this country's good name.
© 2008 New York Times